United States Court of International Trade

Slip Op. 20-98

Before the Court in Tranpacific Steel LLC, et. al. v. United States, et. al., Slip Op. 20-98, Court No. 19-00009 (July 14, 2020) was a challenge to Presidential Proclamation No. 9772 which imposed additional Section 232 duties on steel imported from Turkey. Plaintiffs argued the Proclamation was unlawful because it was issued without following mandated statutory procedures, and singled out importers of Turkish steel in violation of the Equal Protection and Due Process clauses. The President cited his authority to issue the additional 232 tariffs from the Secretary of Commerce’s Report provided on January 11, 2018. The President concurred with the report on March 8, 2018, the Proclamation was issued on August 10, 2018. For the following reasons, the Court found that Proclamation 9772 was unlawful.

The President’s actions under Section 232 may be reviewed for a “clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated authority.” Id. at 5. Section 232 requires that “after receiving the Secretary’s report, the President ‘within 90 days,’ must determine whether he or she concurs with the Secretary and, if so, ‘determine the nature and duration of the action’ to ‘adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security.’” Id. at 4. “The President ‘shall implement that action’ no later than 15 days from his or her decision to take such action.” Id. According to the Court, the additional 232 tariffs were “issued far beyond this temporal window.” Id. at 8. The Court noted that “the purpose and legislative history support that the time limits here were very much intended to require presidential action in a timely fashion, not just encourage it” and that there was “nothing in the statute to support the continuing authority to modify Proclamations outside of the stated timelines.” Id. at 8-9.   The Court then moved to the Constitutional claims. In evaluating an equal protection claim, the Court will apply the rational basis test, is there “a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Id. at 6. The Court concluded that Section 232 did not ban the President from addressing concerns by focusing on particular exporters, but the decision to focus on Turkey, without any justification, was a violation of the equal protection clause. The Court declined to analyze the due process claim by stating whatever constitutional minimum process might be owed, it was satisfied by requiring the President abide by the statute’s procedures. As such, the Court found that Proclamation 9772 was in violation of mandatory statutory procedures and in violation of the Fifth Amendment’s Equal Protection clause.